McVeigh attorneys to appeal ruling against stay

U.S. District Judge Richard Matsch rejected motion for stay of Timothy McVeigh's execution, calling him an "instrument of death and destruction."

DENVER, Colorado (CNN) -- Calling Timothy McVeigh an "instrument of death and destruction," U.S. District Judge Richard Matsch refused Wednesday to stop Monday's scheduled execution of the Oklahoma City bomber.

With time running out for the condemned Gulf War veteran who was found guilty four years ago of the single-deadliest terrorist act on U.S. soil, McVeigh's attorneys vowed to appeal the ruling.

Matsch said defense lawyers failed to prove that more than 4,400 pages of new FBI documents contained anything that called into question McVeigh's guilt, and he rejected their claims that the government had committed a "fraud upon the court" by failing to disclose those documents at the 1997 trial.

McVeigh, 33, is scheduled to die by lethal injection 7 a.m. local time Monday at the Federal Penitentiary in Terre Haute, Indiana, for the April 19, 1995 bombing of the Murrah Federal Building in Oklahoma City. The bombing killed 168 people, including 19 children.

Robert Nigh, an attorney for McVeigh, described himself as "extremely disappointed" and said he would file an appeal Thursday. He said he informed McVeigh of Matsch's ruling and his client approved the appeal.

Survivors and family members of bombing victims welcomed the ruling.

"I think Tim's time is up," said Lyle Cousins, the husband of one victim.

Matsch said there is no doubt McVeigh was responsible for the crime, noting his own lawyers did not even make a claim of innocence.

"Timothy McVeigh was at war with the U.S. government ... The prescribed punishment for Timothy McVeigh' crime includes death," Matsch said.

The judge also dismissed defense claims that the new documents could point to other suspects in the fatal blast. The judge said whatever may in time emerge about any others involved, "it will not change the fact that Timothy McVeigh was the instrument of death and destruction."

Oklahoma Gov. Frank Keating applauded Wednesday's decision.

"It was the right ruling, and for the families and for Oklahoma," he said. "Now there's finality, now the ultimate punishment will be imposed."

Matsch issued his ruling after a 90-minute hearing during which prosecutors and defense lawyers clashed on whether the court should grant a stay of execution for McVeigh, who last December had declared he was ready to die. He changed his mind after the FBI admitted it had failed to produce witness reports and documents that could have been used at his trial.

Both sides had outlined their positions in angry, accusatory briefs filed with the court earlier.

The judge has sharp questions for both sides, saying he was "shocked' that the government had failed to turn over all FBI documents during the trial, but also expressing some skepticism about defense claims that the failure was intentional.

Matsch ruled there was no evidence of any intentional scheme by the FBI to withhold witness statements from the court.

On the question of the FBI documents fiasco, he said, "It is the function of others to hold the FBI accountable for its conduct here and elsewhere, and I would expect there will be consequences."

McVeigh: What's next?

 McVeigh attorneys Robert Nigh told CNN Wednesday that the Oklahoma City bomber has authorized him to appeal Judge Richard Matsch's decision not to stop Monday's scheduled execution. Nigh says he will file the appeal Thursday with the 10th U.S. Circuit Court of Appeals.

 The 10th Circuit can either deny McVeigh's appeal or overturn Judge Matsch and issue a stay pending further action before the judge.

 If the 10th Circuit denies McVeigh's appeal, his attorneys could then appeal to the U.S. Supreme Court.

Breyer could either grant a stay on his own, or allow the full court to make the decision.

 The Supreme Court could affirm the lower courts' denials or overturn the decisions and grant a stay of execution pending resolution of McVeigh's appeal to reconsider his sentence.

 If the Supreme Court denies McVeigh a stay of execution on these grounds, his attorneys could still possibly file a last-minute appeal on other grounds.

Attorney General John Ashcroft, who had postponed McVeigh's execution last month after the FBI revealed its apparent mistake, applauded the ruling, saying it highlighted both a "guilty defendant" and "an innocent system."

"I'm very pleased that today our judicial system exercised it responsibility in a way that reinforces justice," Ashcroft said, thanking victims of the blast for their patient and understanding during "an additional month of uncertainty."

Doris Jones, the mother of one bombing victim, said she was "ready for this to be over" and hoped that McVeigh would be executed Monday.

Jim Denny, the father of bombing victims, expressed relief.

"This isn't just a victory for victims; this is a victory for our justice system," Denny said.

Stephen Jones, a former McVeigh attorney, predicted his onetime client would have "a tough road to climb" in seeking to delay his execution at this point. McVeigh has not won any past appeals.

A notice of appeal would be filed with the district court in Denver and the actual appeal would be filed with the 10th Circuit Court of Appeals nearby.